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Home , Bendlerblock, Carl Friedrich Goerdeler, Operation Valkyrie, Otto Ernst Remer

2009/#1

SPECIAL OCCASIONAL PAPER

“July 20, 1944 – Who Were the Traitors? The Legal Perspective of ”

An address by Dr. Hansjörg Heppe Director of the Dallas Warburg Chapter, Associate Attorney at Locke Lord Bissell & Liddell LLP, and ACG Young Leader Alumnus (2006)

before the Dallas Eric M. Warburg Chapter of the American Council on

January 11, 2009 Dallas, Texas

Operation Valkyrie was a plan devised by to suppress civil unrest that might be triggered by insurgencies in labor or concentration camps within . Colonel Klaus Count Stauffenberg and other resistance fighters rewrote this plan to include civil unrest caused or utilized by Nazi leaders. Their intention was to: (1) kill Hitler; (2) blame Hitler’s death on his rivals within the Nazi regime; (3) set Operation Valkyrie in motion in order to (a) arrest all Nazi leaders, and (b) dismantle the SS, SA, and all other Nazi organizations; (4) shut down the concentration camps and release their prisoners; and (5) restore order and dignity in Germany. On July 20, 1944, Stauffenberg flew from to the Wolf’s Lair, the eastern-front military headquarters of the German high command in what is now , to participate in a briefing of Hitler. During that briefing, Stauffenberg managed to deposit an explosive device in close proximity to Hitler and then left the briefing before the device went off. Hitler escaped the blast uninjured. Unaware that the plan to kill Hitler had failed, Stauffenberg returned to Berlin to participate in Operation Valkyrie. Also on July 20, 1944, Otto Remer was the commanding officer of the Regiment Gross-Deutschland, the guard of Berlin, and a strong supporter of the Nazi regime. Remer’s superior and Commander of the City of Berlin, General Paul von Hase, was a member of the resistance. Von Hase ordered Remer, as part of the Valkyrie execution, to block off and protect the , the German World War II equivalent of the U.S. Pentagon, and other important governmental buildings in the center of Berlin. Stauffenberg and the other resistance fighters ran Operation Valkyrie out of the Bendlerblock. First, while not knowing that Stauffenberg had carried out the assassination attempt on Hitler and set Operation Valkyrie in motion, Remer executed von Hase’s order. Stauffenberg and the other resistance fighters were safe inside the Bendlerblock. Then, one of Remer’s lieutenants who had good connections to the Ministry of Propaganda asked Remer to see Dr. , Secretary for Propaganda and one of the leading Nazis, to explain the current exercise. (To intensify the drama of that day, the Tom Cruise movie depicts Remer arriving with a warrant issued by Stauffenberg for Goebbels’ arrest.) From his office, Goebbels phoned the Wolf’s Lair, got Hitler on the line, and handed the phone to Remer. Hitler, being Commander-in-Chief, ordered Remer to abandon Operation Valkyrie and arrest the traitors behind it. Remer executed Hitler’s order. At the end of World War II, Remer’s rank was General Major. After World War II, Remer remained a Nazi and became one of the leading members of the Sozialistische Reichspartei (SRP), which was found “anti-constitutional” and therefore prohibited by the German Constitutional Court in October of 1952. In 1951, Remer was campaigning for the SRP in . While campaigning, he made continuous references to the resistance fighters of July 20, calling them traitors. After various complaints had been filed, the District Attorney for the Brunswick region, Generalstaatsanwalt Fritz Bauer, personally pursued the matter. In 1952, Germans did not hold the resistance fighters from the Nazi period in particularly high esteem. The public’s attitude was shaped by a complex and complicated mix of national experiences and lack of available information: Immediately after the attempt on his life, Hitler called the resistance fighters “an extremely small clique of ambitious, unscrupulous, and at the same time foolish, criminally stupid officers” who had hatched a plot to remove him and the staff of the German high command in order to assume power for themselves.

1 In the remaining months of the Nazi regime, the known resistance fighters were arrested; stripped of all privileges, if they had any; and tried in the Volksgerichtshof, a special court founded by the Nazis in 1934 in order to deal with persons opposing the Nazi regime. The Volksgerichtshof was first used to silence Nazi critics such as Social Democrats and members of the German Communist Party. During its existence, the Volksgerichtshof issued more than 18,000 sentences that became harsher over time. For example: In 1936, the Volksgerichtshof handed down 11 death sentences. In 1943, it sent 1,662 Germans to the gallows. By 1945, some 5,200 Germans had been executed for treason after being convicted by the Volksgerichtshof. In the aftermath of Operation Valkyrie, more than 2,000 Germans were arrested; some 500 resistance fighters were executed as traitors. As resistance to Hitler grew in Germany, the Allies ignored it. The and the referred to Operation Valkyrie as “the Generals’ Plot.” And in 1944, their enemies were both the Nazis and the Generals. The Allies wanted peace with neither. Thus, on July 21, 1944, the BBC broadcasted the names of all Germans who had contacted Englishmen since 1939 seeking an amicable way to end World War II. The Nazis did not need to do much interrogation that day; taking notes while listening to the radio sufficed. Two weeks later, Prime Minister commented on the incident in the UK Parliament, saying: “The highest personalities of the German are murdering one another, or trying to, while the avenging armies of the Allies close upon the doomed and ever-narrowing circle of their power.” He did not give the resistance fighters any moral credit. By 1952, despite being aware of the atrocities committed by Nazi Germany and having witnessed the Nuremberg trials from 1946 to 1949, many Germans still accepted the Volksgerichtshof label given to the resistance fighters. They thought they were traitors. Public attitudes were also influenced by the lack of an official German government position on Nazi Germany. Founded on May 23, 1949, less than two years before Remer’s campaign activities, the Federal Republic had not yet come to grips with Germany’s Nazi past. For example, unlike other widows and orphans of German war veterans, those of the resistance fighters received no pensions from the German government. And finally, Germany’s loss in World War II added to the unresolved German trauma of . Many Germans believed World War I was lost because they did not stand together as closely as a people as they should have. For example: (1) The Social Democratic majority of German Parliament denied General , Chief of Staff of the German Army, the funds for the army that he claimed were necessary to win the war. (2) Labor strikes were common. By 1917, there had been roughly 500 strikes resulting in more than 2,000,000 total lost workdays, eroding the power of the German economy necessary to win the war. Or, (3) the forced abduction of Emperor William II, who was Commander-in- Chief, in November 1918 and the surrender of Germany that same month, while no foreign soldier was on German soil. All that led to the Dolchstoßlegende (the “Stab-in-the-back Legend”). To the average German, had the resistance fighters not done exactly the same thing? Did they not disunite the leadership of the German military to an extent that it lost the power that may have been necessary to win the war? What else could the resistance fighters be but traitors? Against this backdrop, D.A. Bauer pursued criminal charges on behalf of (1) the government, (2) a resistance fighter who had survived the war, and (3) certain surviving dependents of resistance fighters (such as the son of General von Hase) who had been executed as traitors, against Remer for slander, an offense that may not only trigger civil but also criminal consequences under German . To win, the

2 prosecution had to prove that the resistance fighters did not betray Germany or their superiors. It had to prove that Remer’s statement was not true. The prosecution based its proof of non-truth on multiple arguments: First, that the actions of the resistance fighters in attempting to kill Hitler did not constitute a crime at all. Second, that treason is an act of betrayal of one’s government. If the regime in power, however, is not legitimate, then there is no duty of loyalty. And finally, D.A. Bauer argued that treason is not possible without the intent to be treasonous. In more detail: To prove his first argument, that the actions of the resistance fighters in attempting to kill Hitler did not constitute a crime at all, D.A. Bauer introduced the expert testimony of three theologians who professionally researched ethics and morals (Moraltheologen). All of them were of the opinion that there was no moral shadow on the actions by the resistance fighters in connection with Operation Valkyrie. The resistance fighters were acting in compliance with German moral and ethical principles. According to D.A. Bauer, “How can actions constitute a criminal offense, and therefore be treason, if such actions comply with ethics and morals?” Ethics and morals typically impose obligations beyond the minimum standards of conduct required to trigger punishment under criminal law. If actions in compliance with higher ethical standards are punishable under criminal law, such law must be wrong. The execution of Operation Valkyrie can therefore not be referred to as the commission of a crime and the persons involved in it cannot be referred to as traitors. To prove his second point, there can be no treason against a regime that lacks legitimacy, D.A. Bauer argued from two directions: First, that the rise to power of the Nazi regime was illegal, thus the Nazi regime had no legitimacy as a government. Second, that the Nazi regime violated customary German law that bound leaders to their people, thereby freeing the German people from any obligation of loyalty. In 1933, Germany was governed by the Weimar , which prescribed a democratically instituted form of government. Hitler usurped power after burning the Reichstag on February 27, 1933, in the following manner: His emergency decree of February 28 abandoned the basic rights that the Weimar Constitution granted to every person living in Germany. Democratically granted basic rights set forth in a constitution, however, cannot be legally abandoned by a decree. Hitler used the burning of the Reichstag for yet another decree that he issued on March 21, 1933. This second decree protected the government, its supporting parties, and its supporting associations. It therefore violated the basic principle of equal treatment by protecting only such parties and associations that were for the government, not those that were critical of the government. Hitler then used this second decree to exclude all communist Members of Parliament. By doing so, his slim majority of 52 percent in Parliament grew to over 66.6 percent. This supermajority helped him to consolidate his power through the Ermächtigungsgesetz (“Enabling Act”) passed on March 23, 1933. On August 1, 1934, Hitler issued a decree uniting the function of the President of the empire with the function of the Chancellor of the empire in himself. He therefore made himself head of state and Commander-in-Chief, and assumed all other powers associated with these two functions. By doing so he violated his own law. The Ermächtigungsgesetz provided that the authority of the President could not be decreased or otherwise modified. At the time of Hitler’s action, Reichspräsident was alive and occupying the elected office of the President. He did not die until one day later.

3 The Ermächtigungsgesetz, as enacted, had a 10-year sunset provision. It expired on May 10, 1943. By decreeing that the authority conferred upon himself by the Ermächtigungsgesetz would not expire that day, Hitler again acted illegally and in violation of German law. Only a law enacted by German Parliament, not a decree by the executive, could have extended Hitler’s authority. Even presuming that all of Hitler’s actions were in compliance with the Ermächtigungsgesetz before May 10, 1943, the legal authority granted to the Nazi regime by the Ermächtigungsgesetz expired with such law. Every action by the Nazi regime thereafter was illegal. Hitler decreed on August 20, 1934, that every governmental agent and soldier swear personal unconditional faithfulness and obedience to him personally. This was flawed in two ways: (1) The swearing persons were never released from their oath taken under the Weimar Constitution. If a person in a certain function has to swear two conflicting oaths to exercise that function, both oaths become invalid. (2) The obligation to unconditionally obey another human being was unprecedented in German and world history. No ethical society would permit one human being to ask such a thing of another. Even the German military, known at the time for its strict discipline, acknowledged that there are limits to obedience: Section 47 of the military code of conduct in force at the time provided that a criminally punishable action remains criminally punishable, even if the soldier who committed it was ordered by a superior to execute such action. The only claim left that Hitler could have made to legitimize his actions was that his usurpation of power in the was justified by a revolution of the German people. A successful revolution, however, requires the support of the people. Reliance by Hitler on the Nazi secret police (), ward heelers (Blockwarte), and the Volksgerichtshof to preserve his power does not, however, indicate that the Nazi regime was generally well accepted. The use of terror, including the threats of death and deportation to concentration camps, to silence critics and to stifle dissenters undermines any claim of a successful revolution. And finally, leaving the fine print and legalese behind and building on the previous argument, D.A. Bauer made a general argument: From 1933 to 1945, Nazi Germany was a system of terror and arbitrariness, an Unrechtsstaat. An Unrechtsstaat can, however, never be the object of treason. Only a system of justice, a Rechtsstaat, can be betrayed. The second argument to prove that there was no duty of loyalty to the Nazi regime was that the Nazi regime violated customary German law that bound leaders to their people. D.A. Bauer substantiated this argument in the following manner: Under the Sachsenspiegel, the oldest known German law book that described the common law practices in Saxony of the 12th century, “the feudal system works both ways: Obligations are owed by the subject as well as by the lord. If the lord violates his obligations toward his subjects, he loses his claim on the loyalty of his subjects.” The prime example in German history of the loss of such loyalty rights because of abuse is Lord Hermann Gessler, who was killed by William Tell in the year 1307. As described above, the actions of Hitler and the Nazis violated the social compact between the ruler and his subjects. Their system of terror and arbitrariness breached their obligations to the people. The German people were therefore not obliged to deliver loyalty to the Nazi leadership. Thus, people who fail to obey a regime to which they owe no obligation cannot be traitors. Finally, D.A. Bauer turned to his third argument, the issue of intent. Absent a desire to betray one’s country, no act can be found treasonous. In this case, much like Brutus, who claimed to have killed Caesar not because he did not love Caesar, but because he loved Rome more, the resistance fighters conspired

4 against Hitler as patriots, not as traitors. As evidence, D.A. Bauer offered that Stauffenberg died with the words “Long live sacred Germany” on his lips. A man with such motivation does not intend to betray his country. In sum, the resistance fighters had acted in accordance with German ethics from purely patriotic motives against a regime which had never adhered to the rule of law. They were not traitors but heroes, sacrificing their lives for their country. Because there was no truth to the allegations of Remer, his statements constituted slander under German law. The Remer Prozess took place on March 7, 8, 10, and 11, 1952. My grandfather, Joachim Heppe, chaired the bench that consisted of him, two other professional judges, and two lay judges. Germany does not use juries, but instead has citizens sitting on the bench of important criminal trials. On such benches, each bench member has a vote. The two votes of the lay judges combined with one vote of a professional judge may therefore overrule the vote of the presiding judge and the other professional judge. As with jury deliberations, the deliberations of the bench are secret. (I hope, however, that my grandfather came out on side.) The court examined the testimony of 23 witnesses in support of the defense and the prosecution. Among such witnesses were the aforementioned resistance fighter and the surviving dependents of resistance fighters on whose behalf the criminal charges were pursued. The court also examined six expert witnesses, including the previously mentioned theologians, as well as: (1) Dr. Hans Lukaschek, a Secretary in the Adenauer Cabinet; (2) Dr. Otto John, first Director of the German FBI equivalent after World War II; (3) Walther Kleffel, a journalist and friend of Dr. ; (4) Dr. Karl Friedrich Bonhoeffer, brother of Dr. ; and (4) other resistance fighters (such as Dr. Fabian von Schlabrendorff, who became a Justice at the German Constitutional Court from 1967 to 1975). After the closing arguments, the judges deliberated for a total of 21 hours on three separate days. The court delivered its judgment on March 15, 1952. It followed the arguments of the prosecution on most points. Its judgment is best summarized by a U.S. Army News Service clip from that day, saying: “A German judge sentences former Maj. Gen. to three months in jail for calling the officers who tried to assassinate Hitler in 1944 traitors. Instead, the judge, Joachim Heppe, said the officers who planned the assassination were ‘heroes,’ not traitors, because Hitler’s regime was ‘illegal.’ It’s the first [time] such anti-Hitler comments have been made in a West German court.” The German Supreme Court followed and affirmed the judgment on December 11, 1952. Today, it is commonly held that the Remer Prozess is the most important trial of the 1950s dealing with Germany’s Nazi past.

The author would like to thank Kevin M. Keith, Associate Attorney at Locke Lord Bissell & Liddell LLP and Colonel, United States Air Force (Retired), for his helpful comments while preparing this address.

The views expressed in ACG Occasional Papers are those of the speaker/author.

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